Saturday, January 24, 2009

Canada's press has been having a field day with four sensational cases that have been winding their way through the nation's courts.

Dealing with fundamental questions at the very root of our values around marriage, children and family, these cases have captured the public's collective imagination - and ire -for very good reason.

The questions they pose are clearly lightning rods for debate:

How do we adjudicate the child support claims of a woman who deceived her husband for sixteen years about the paternity of the family's twin children?

What can be done for the children of a marriage who have become so alienated from their father due to their custodial mother's intensive brainwashing that they now refuse any contact with him?

Should there be any entitlement to support or family property sharing in Quebec when a long-term common-law relationship breaks down?

And on the very edge, what shall we now do with polygamy, given that the law has evolved to become considerably more elastic its definitional approach to marriage?

Biological Paternity Isn't Determinative - Cornelio v. Cornelio

In a January 7, 2009 decision of the Ontario Superior Court of Justice in Cornelio v. Cornelio, Madame Justice Katherine van Rensburg refused to terminate a man's child support payments for sixteen-year-old twins, after DNA testing determined that he was not their biological father.

In her ruling, Madame Justice van Rensburg framed the issues as follows:

[1] The issue in this long motion is whether the respondent’s child support obligations for two children, who are 16 year old twins, should terminate, now that DNA testing has confirmed that he is not their biological father. The respondent is also seeking repayment of the child support that he paid to the applicant for the twins from the date of separation in 1998, or at least from the date of a consent order of May 2, 2002 when the parties agreed to joint custody and to child support for the three children.

After an exhaustive review of the circumstances under which the law requires payment of child support by parental figures who have been in loco parentis - in the stead of a parent - with their non-biological children, the Court required the continuation of child support payments to the mother.

The Court, while noting the mother's blatant deception about paternity, also adopted the reasoning in "another line of cases... that recognizes that there is no duty on a spouse to disclose an extramarital affair."

The decision, which received much sensational press and talk-radio attention in Toronto, was reported in the Toronto Star:

In van Rensburg's ruling, the fact that PasqualinoCornelio had acted as the twins' father for so long was key to her decision.

"The relationship that developed from the time of their birth was the natural relationship between a parent and his children," she said. "The fact of that relationship – even if it has now become strained – is sufficient to require Mr. Cornelio to continue to contribute toward the children's material needs."

At the root of this decision is the reality that the former husband was the only father figure the children had ever known. He had adopted the role of their father throughout the marriage.

And even though his parental involvement resulted from the mother's blatant fraud, the law has long held that child support obligations do indeed flow once an individual puts himself or herself in the day-to-day role of a parental figure.

The outcome in this case, therefore, is not terribly surprising As Madame Justice van Rensburg commented in her ruling:

....It is consistent with the decision of the Supreme Court of Canada in Chartier that focuses on the reality of the relationship and the best interests of the child in determining whether a parental role has been assumed and whether child support should be paid. Further, and on the authority of the F.S. line of cases, while the failure of Ms. Cornelio to disclose to her husband the fact that she had an extramarital affair and that the twins might not be his biological children may well have been a moral wrong against Mr. Cornelio, it is a wrong that does not afford him a legal remedy to recover child support he has already paid, and that does not permit him to stop paying child support.

[23] The right to child support is the right of a child, and is independent of a parent’s own conduct, whether it be delay in pursuing support, an attempt to contract out of support, or the failure to disclose an extramarital affair that may have led to the conception of the child. Mr. Cornelio was the only father the twins knew during the course of the marriage; the relationship that developed from the time of their birth was the natural relationship between a parent and his children. The fact of that relationship, which continued for six years before separation and then for 10 years after separation, even if it has now become strained, is sufficient to require Mr. Cornelio to continue to contribute toward the children’s material needs.

[24] Even if this matter were approached on the basis of fairness to the respondent, I would conclude that his child support obligations toward the twins continues notwithstanding that he is not their biological father. By his own admission, Mr. Cornelio knew at the time of separation that his wife had an extramarital affair with “Tony” and he developed suspicions that she had known Tony during the marriage and that he might be the father of all three of their children. Notwithstanding these suspicions, Mr. Cornelio sought joint custody of all three children and entered into a consent order that provided for his ongoing and important involvement in their lives and for the provision of child support. It was not until access was interrupted and Ms. Cornelio commenced these proceedings seeking increased child support that the respondent began pursuing this issue. As Mendesda Costa U.F.C.J. noted in Spring, a support obligation to a child created by one’s conduct during the marriage cannot be cast aside after separation. I can only conclude that this motion by Mr. Cornelio is a response to the current conflict with the applicant and his unfortunate alienation from the children, which may well be temporary.

Parental Alienation has Consequences - AGL and KBD

Similarly, a strongly-worded January 16, 2009 decision of the Ontario Superior Court Justice in A.G.L. v. K.B.D., 2009 CanLII 943 (ON S.C.), was equally predictable on any reading of the facts.

Madam Justice Faye McWatt's decision documents a horrific, fourteen year history of toxic parental alienation by the mother of three girls, aged 9, 11 and 14. The mother was clearly determined to terminate their relationship with their father, a surgeon who, in spite of the mother's concerns, had been repeatedly found by various experts to possess good parental ability.

All three children were adamant in their stated wishes to remain with their mother.

"It is now time for his and the children's fates to be free from [the mother's] control," Madam Justice Faye McWatt of the Ontario Superior Court of Justice said in her ruling. "She has shown that she cannot be entrusted with it."

The judge said the children had become so poisoned toward their father by the mother's "emotional abuse" that they had lost the capacity to make independent decisions about interacting with him.

Judge McWatt said a psychologist who assessed the family noted that K.D. was obsessive about observing the children when they were with their father, retained an unreasoning belief that he would harm them, and "overprotected the three children to the point of infantilizing all of them.

"Eventually, he was not allowed to see or speak to the children - but was left shouting good night to them through a door of K.D.'s home," Judge McWatt added. "Most times, he was not aware whether they were in the house. He did this for up to two years during this period."

In a stunningly blunt rebuke to the children's mother, the Court ordered that the three children girls be removed from their mother's care.

Madame Justice McWatt also required that they be sent for therapeutic treatment to a "Family Workshop for Alienated Children program," created by Dr. Randy Rand, at the mother's expense.

(Note the Globe's loaded characterization of the therapy programme as a "parental alienation centre for deprogramming." )

Finally, Madame Justice McWatt placed the children in their father's permanent custody - with contact with their mother essentially prohibited.

A brief excerpt from Madame Justice McWatt ruling follows:

[151] The three children of the marriage have been alienated from the Applicant over a long period because K. D. is unable to accept that it is in the best interests of the children to have a relationship with their father. She has been given several opportunities to change her behaviour over many years, and refuses to do so. I find that her unrelenting behaviour toward the children is tantamount to emotional abuse as described by Dr. Fidler. The views and preferences of the two older children are not their own. And for the children to have any further contact with the Respondent, significant therapeutic intervention is necessary.

[152] It is remarkable that A. L. has not given-in to the Respondent’s persistence in keeping his children from him over the last fourteen years and simply gone on with his life without the children as, no doubt, many other parents in the same situation would have and, indeed, have done. It is now time for his and the children’s fates to be free from K. D’s control. She has shown that she cannot be entrusted with it.

[153] The best interests of these children require an order for A. L. to have sole custody of them...

The court also issued a restraining Order, preventing the mother from having contact with the children, pending a subsequent review of the family's progress:

Pursuant to section 17(3) of the Divorce Act and section 35 of the Children’s Law Reform Act, and subject to paragraph 2 herein, the Respondent [mother] is not to harass, annoy or molest, or attend within 300 meters of, or have any contact with the Applicant [father]or the children. She is not to have any contact, direct or indirect, or cause any contact, direct or indirect, with the children or with the Applicant pending review of this matter, as set out below, and this Order of restraint of contact by the Respondent with the children applies to all places where the children attend, including, without limiting the generality of same, the Applicant’s home, the children’s schools, the children’s church or place of extracurricular activities.

What can we take from these two cases?

Fatherhood Matters

I'd suggest that while these cases break very little new legal ground, they highlight one of the fundamental values of Canada's current family law regime - nothing trumps what is best for the children. Period.

Especially the petty and not-so-petty squabbles of their parents.

All things being equal, Canadian law recognizes that children need the care, guidance and material support of both of their parents. Parents cannot legally walk away from that responsibility, not can they lawfully be pushed away.

At the risk of over-generalization, it is fair to say that poor behaviour and enmity of former spouses toward each other has become increasingly irrelevant in Canada's family courts over the last four decades. A line in the sand, however, is drawn at the point former spouses' misconduct toward each other detrimentally impacts the welfare of children.

These two decisions, jointly considered, do much to dispel the myth of Canadian family courts' bias in favour of women. But even if these cases have been rightly decided, many will harbour a lingering feeling that something is just not right about them.

At first glance, wrenching three girls - against their will - from the continuity of their mother's care, after the mother has psychologically ripped them away from their father, seems as much a retributive social experiment as a solution.

And providing no recourse to a man who has been duped to believe he has fathered a family's children - while imposing a decades-long financial burden upon him - hardly fulfils our quest for higher justice.

These two cases make us yearn for the kind of custom-made solutions that don't easily emerge in a family law system that is increasingly dominated by standardized tables, doctrines, guidelines and timetables:

A child support Order tailored to benefit the children, but not their mother - e.g. - the father makes certain expense payments directly to third parties in lieu of support, rather than paying support to the mother.

A transfer of custody that would not risk emotionally harm to the children by tearing them wholly from contact with their mother against their will. I have no crystal ball, but it would be no surprise to me if the eldest daughter, in particular, will simply count the days until she reaches age 16 and return to her mother's care thereafter - I've seen it happen.

Paradoxically, both cases are also a predictable byproduct of our anachronistic resort to adversarial justice as a means of sorting our the legal consequences of family breakdown.

Would either case have taken these unfortunate turns if our family laws featured a presumption of joint custody upon relationship breakdown and, absent emergency, required a mandatory period of intensive family law mediation before permitting litigation?

Palimony, Non?

The ongoing Quebec palimony case, which we first reported last March, provides a surprising glimpse of the disparity between the provinces in basic, family law policy.

While the interests of married people are determined federally through the Divorce Act and related legislation, the provinces retain jurisdiction over unmarried couples.

Unmarried common-law partners in Ontario have had statutory spousal support entitlements after three years of cohabitation since 1978, when the then-revolutionary Family Law Reform Act was enacted.

Common law spouses in Quebec are afforded no such protections. It is at least somewhat surprising, then, that it has taken until 2009 for the constitutionality of this anomaly to be tested.

A Quebec billionaire at the centre of a messy and public airing of his 10-year relationship with a young Brazilian summed up yesterday why he never married her, despite having three children together.

"It's not my cup of tea," the man, who can't be identified under provincial law, told a packed Quebec Superior Court room. His former common-law wife has launched a constitutional challenge to Quebec's unique-in-Canada family law to receive financial support, in a case that could affect the rights of the one million common-law couples in the province...

The woman's lawyers, who expect the case to go to Canada's top court, want couples in de facto unions for three years without children or one year with children treated the same as people who are married, just as in all other provinces.

The woman is asking for $56,000 a month plus a onetime payment of $50-million -- a figure she says reflects the kind of spending power she had when the two were together.

But the man, now living with a model to whom he is not married but with whom he has two children, says he gives the three children by his former lover ample support... He pays for the nannies, chauffeur, cleaning lady and cook, as well as all the children's school fees. He gives the woman $35,000 a month in child support.

Quebec has a lot of such unmarried couples. According to Statscan figures from 2005, 34.6 of women in Quebec are living in common law relationships.

Quebec's rate of couples living together out of wedlock is almost triple the rate in the rest of Canada, where only 13.4 percent of women are in unmarried cohabitation fake-marriage situations. Other countries are all far lower than Quebec. Britain, which studies show is the most sexually active country in Europe sees only 15.5 percent of couples in common law relationships.

... Quebec has Civil Law, the Napoloenic Code, as it's known. We do not practice Common Law here, so Common Law relationships is a misnomer. There's no such thing as a common law relationship, so there's no compensation for women splitting up from such a relationship.

So living in Quebec is a great deal for rich men. Sure, they'll be on the hook for child support payments but beyond that it's zilch.

I'm still scratching my head at why (and how) Quebec's provincial government has avoided this issue for so long.

While the actual legal arguments to be advanced have not been featured in any of the press coverage to date, I expect the parties' positions will focus of the conflict between the Constitution's separation of provicial and federal powers and the Charter's Section 15 guarantee of "equal protection and equal benefit of the law without discrimination... based on national or ethnic origin, sex..."

And for those who are interested, Ann-France Goldwater, the lawyer for the woman claiming support in this case, made a cameo appearance in the comments section of our first blog post on this case.

The Polygamists' Rationale - Everybody else is doing it...

Finally, with criminal charges pending against a British Columbia man with 19 wives, polygamy will now have its Canadian test of constitutionality.

Same-sex marriage, they said, would be the slippery slope to polygamy.Just a few short years after Canadians engaged in a caustic debate over whether two men, or two women, should be allowed to marry, the prognosticators will find out if they are vindicated - however unhappily.

The lawyer for Winston Blackmore, the man with 19 wives in the B.C. religious community of Bountiful who is to appear in court today on polygamy charges, says he will cite Canada's gay-marriage laws as part of his defence.

It's an argument that people on both sides of the same-sex marriage fight were expecting: If same-sex marriage is justified under Charter rights to equality, then polygamy is justified under the Charter's protection of religious freedom.

The article continues with discussion of another BC polygamy charge, now pending:

Salt Lake City lawyer Rodney Parker, who has represented members of the polygamous religious community in the United States, said yesterday the legalization of gay marriage in Canada will allow the court to focus directly on the defendants' constitutional rights in a way that U.S. courts could not.

With the Supreme Court of Canada decision legalizing gay marriage, Canada is "further down the path" than the U.S. on marriage issues, he said.

"It is a defence we've argued for in the states," Mr. Parker said in a phone interview from his office. The arguments, however, were ineffective because U.S. prosecutors went after sexual crimes, not polygamy. "The cases we had down here so far involved minors. Oler's case does not involve a minor."

Jim Oler, a rival leader from a different faction within the religious community in B.C., has also been charged with polygamy, for allegedly having two wives. Mr. Oler is aligned with those in the U.S. who have been represented by Mr. Parker. The Salt Lake City lawyer was the spokesman for the church after the raid last spring on the group's Yearning for Zion compound in Texas.

Marriage By the Numbers

Frankly, I don't think polygamy's day of recognition has come to Canada, yet.

But I do confess that I have at least an academic fascination with the legal arguments ahead.

The argument will be that where religious beliefs legitimately permit or even mandate such polygamous marriages, what then, can be the legal rationale for forbiding them in the face of the Charter?

For example, if a person has dozen common-law spouses, wouldn't each of them have a support claim against the primary other - or perhaps all of the others - upon separation, if the cohabitation had a duration of at least three years.

(Except in Quebec, of course).

So there you have it. It's only January, but 2009 is shaping up as a year in which family law courts will be addressing a number of cutting-edge issues that will raise a few eyebrows.

- Garry J. Wise, Toronto

..........................

UPDATE:

A few of our comments have noted support awards to polygamous spouses by provincial courts in Saskatchewan. They've also directed my attention to the Criminal Code provision on polygamy:

293. (1) Every one who (a) practises or enters into or in any manner agrees or consents to practise or enter into (i) any form of polygamy, or (ii) any kind of conjugal union with more than one person at the same time, whether or not it is by law recognized as a binding form of marriage, or (b) celebrates, assists or is a party to a rite, ceremony, contract or consent that purports to sanction a relationship mentioned in subparagraph (a)(i) or (ii),is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years.

The Ontario Human Rights Tribunal has ordered National Money Mart Company to pay $30,000 in compensation to a former, one-year employee of the company who had been subjected to ongoing, serious sexual harassment by her workplace supervisor.

With the Ontario Court of Appeal's June 25, 2009 ruling in Slepenkova v. Ivanov, it is now clear that the nearly-universal pronouncements by management lawyers as to the death of Wallace damages after Honda and Keays may have been a bit premature.

In Slepenkova, the Ontario appellate court upheld a two-month notice extension for an employer's bad faith termination, even though no evidence was led at trial as to the specific damages the employee directly incurred as a result of the bad faith. This appeared to place the trial Judge's decision at odds with the new Wallace test set out in Honda.

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